In Muldrow v. City of St. Louis, Missouri, 2024 WL 1642826 (U.S. April 17, 2024), the U.S. Supreme Court (in an opinion authored by Justice Kagan) held that, in the context of a claim of discrimination in a form of a transfer (here, because of the plaintiff’s sex) in violation of Title VII of the Civil Rights Act of 1964, the lower court erred by requiring the plaintiff to show that the transfer caused a “materially significant disadvantage.”
The Court provides the following discussion of Title VII’s text, the primary basis for its decision:
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” § 2000e–2(a)(1). Muldrow’s suit, as described above, alleges that she was transferred to a lesser position because she is a woman. That transfer, as both parties agree, implicated “terms” and “conditions” of Muldrow’s employment, changing nothing less than the what, where, and when of her police work. So the statutory language applicable to this case prohibits “discriminat[ing] against” an individual “with respect to” the “terms [or] conditions” of employment because of that individual’s sex.
That language requires Muldrow to show that the transfer brought about some “disadvantageous” change in an employment term or condition. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). The words “discriminate against,” we have explained, refer to “differences in treatment that injure” employees. Bostock v. Clayton County, 590 U.S. 644, 681, 140 S.Ct. 1731, 207 L.Ed.2d 218 (2020). Or otherwise said, the statute targets practices that “treat[ ] a person worse” because of sex or other protected trait. Id., at 658, 140 S.Ct. 1731. And in the typical transfer case, that “worse” treatment must pertain to—must be “with respect to”—employment “terms [or] conditions.” § 2000e–2(a)(1). The “terms [or] conditions” phrase, we have made clear, is not used “in the narrow contractual sense”; it covers more than the “economic or tangible.” Oncale, 523 U.S., at 78, 118 S.Ct. 998; Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Still, the phrase circumscribes the injuries that can give rise to a suit like this one. To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.
What the transferee does not have to show, according to the relevant text, is that the harm incurred was “significant.” Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar. “Discriminate against” means treat worse, here based on sex. But neither that phrase nor any other says anything about how much worse. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm. To demand “significance” is to add words—and significant words, as it were—to the statute Congress enacted. It is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more of her than the law as written.
And that difference can make a real difference for complaining transferees. Many forced transfers leave workers worse off respecting employment terms or conditions. (After all, a transfer is not usually forced when it leaves the employee better off.) But now add another question—whether the harm is significant. As appellate decisions reveal, the answers can lie in the eye of the beholder—and can disregard varied kinds of disadvantage. Take just a few examples from the caselaw. An engineering technician is assigned to work at a new job site—specifically, a 14-by-22-foot wind tunnel; a court rules that the transfer does not have a “significant detrimental effect.” Boone v. Goldin, 178 F.3d 253, 256 (CA4 1999). A shipping worker is required to take a position involving only nighttime work; a court decides that the assignment does not “constitute a significant change in employment.” Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 635 (CA10 2012). And a school principal is forced into a non-school-based administrative role supervising fewer employees; a court again finds the change in job duties not “significant.” Cole v. Wake Cty. Bd. of Educ., 834 Fed.Appx. 820, 821 (CA4 2021) (per curiam). All those employees suffered some injury in employment terms or conditions (allegedly because of race or sex). Their claims were rejected solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require.
[Citations omitted.]
The court proceeded to reject the defendant’s arguments – including based on the canon of ejusdem generis, precedent, and policy objections – noting that “[h]ad Congress wanted to limit liability for job transfers to those causing a significant disadvantage, it could have done so,” which judgment the “Court does not get to make.”
Applying the law, the court concluded:
In light of everything said above, the Court of Appeals’ treatment of Muldrow’s suit cannot survive. The court required Muldrow to show that the allegedly discriminatory transfer out of the Intelligence Division produced a significant employment disadvantage. As we have explained, that is the wrong standard. Muldrow need show only some injury respecting her employment terms or conditions. The transfer must have left her worse off, but need not have left her significantly so. And Muldrow’s allegations, if properly preserved and supported, meet that test with room to spare. Recall her principal allegations. She was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders. She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily performed administrative work. Her schedule became less regular, often requiring her to work weekends; and she lost her take-home car. If those allegations are proved, she was left worse off several times over. It does not matter, as the courts below thought (and Justice THOMAS echoes), that her rank and pay remained the same, or that she still could advance to other jobs. Title VII prohibits making a transfer, based on sex, with the consequences Muldrow described.
[Citations omitted.]
The Court concluded by noting that it was leaving for the lower courts to address evidentiary issues pertaining to the two positions at issue, and that all it requires “is that they use the proper Title VII standard, and not demand that Muldrow demonstrate her transfer caused ‘significant’ harm.”